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Utility appeals wind turbine noise court ruling

“Both Consumers and its consultant should have known from past work on other projects that locating large, utility-scale wind turbines close to residential homes was likely to result in the type of litigation now in progress.”

Consumers Energy is appealing the 51st Circuit Court ruling that upheld Mason County’s determination that the Lake Winds Energy Plant near Ludington is in violation of the county’s 45-decibel noise ordinance.

Arguing that the County’s decision was an “erroneous ruling,” the utility filed a 38-page appeal with the Michigan Court of Appeals on July 18. In addition, Consumers Energy is saying that if the ruling by 51st Circuit Court Judge Richard Cooper were allowed to stand, it could have an impact on many other wind turbine plants across the state.

“This has implications beyond just Mason County,” Dennis Marvin, spokesman for Consumers Energy told Capitol Confidential. “We believe the study the county based its decision on was flawed. We took this decision (to appeal) very seriously, but ultimately our legal staff determined this was in the best interest of our customers and the landowners at the wind park.”

Rick James, of East Lansing-based E-Coustic Solutions, is an acoustician specializing in the production, control, transmission, reception and effects of sound. According to James, Consumers Energy is not exaggerating when it talks about the potential impact of the Lake Winds case.

“Consumers’ appeal has less... more [truncated due to possible copyright]

Consumers Energy is appealing the 51st Circuit Court ruling that upheld Mason County’s determination that the Lake Winds Energy Plant near Ludington is in violation of the county’s 45-decibel noise ordinance.

Arguing that the County’s decision was an “erroneous ruling,” the utility filed a 38-page appeal with the Michigan Court of Appeals on July 18. In addition, Consumers Energy is saying that if the ruling by 51st Circuit Court Judge Richard Cooper were allowed to stand, it could have an impact on many other wind turbine plants across the state.

“This has implications beyond just Mason County,” Dennis Marvin, spokesman for Consumers Energy told Capitol Confidential. “We believe the study the county based its decision on was flawed. We took this decision (to appeal) very seriously, but ultimately our legal staff determined this was in the best interest of our customers and the landowners at the wind park.”

Rick James, of East Lansing-based E-Coustic Solutions, is an acoustician specializing in the production, control, transmission, reception and effects of sound. According to James, Consumers Energy is not exaggerating when it talks about the potential impact of the Lake Winds case.

“Consumers’ appeal has less to do with the supposed 1 decibel error, the topic of the appeal, and more to do with the wind industry’s broader concerns,” James said. “A decision by the Appeals Court in favor of Mason County would make it easier for other counties and townships with wind energy utility noise regulations to prove non-compliance.”

“Consumers would have been better advised if they had not accepted the conclusions of their acoustical consultant that the proposed project could be fit into the host community without causing problems,” James continued. “Both Consumers and its consultant should have known from past work on other projects that locating large, utility-scale wind turbines close to residential homes was likely to result in the type of litigation now in progress.”

Located south of Ludington, Lake Winds was the utility company's first wind plant project in Michigan. Residents who live near the $255 million, 56-turbine facility started complaining of health problems shortly after the turbines began operating. They filed a lawsuit on April 1, 2013, arguing that noise, vibrations and flickering lights emanating from the wind plant were adversely affecting their health. Among the symptoms noted in the lawsuit were dizziness, sleeplessness and headaches.

Less than six months later, in September 2013, the Mason County Planning Commission determined that the wind plant was not in compliance with safety guidelines. CMS Energy, which is the parent company of Consumers Energy, then appealed that decision to the Mason County Zoning Board of Appeals and lost. In January, CMS took the case to court again, where it lost once more.

As the case began at the Circuit Court level, in January, the utility asked Judge Cooper to delay the requirement that it make efforts to mitigate the alleged noise problem until the court made its final ruling. Cooper denied that request. Now, as part of its appeal, Consumers Energy is asking the same thing of the Appeals Court.

“Lake Winds is an embarrassment for CMS and for good reason,” said Kevon Martis, director of the Interstate Informed Citizens Coalition, a nonprofit organization that is concerned about the construction of wind turbines in the region. “They denied well-established science that indicated in advance that this project would not comply with the noise language CMS essentially dictated to Mason County. The truth is that even if CMS complied with the wind turbine noise limits they demanded from Mason County, evidence from inside Lake Winds, as well as inside almost every major wind plant across the state, is clear: 45-decibel wind turbine noise limits are not adequate to protect homeowners whose township has been turned into a 47-story tall power plant.”

“Ohio just recently modified their turbine setback standards to 1,320 feet and for that distance to be established from property lines,” Martis continued. “Our home rule townships would be wise to adopt similar or stronger language to protect their residents from such abuse.”

Lake Winds is part of the utility's effort to meet Michigan's renewable energy mandate, which requires that 10 percent of the state's energy be produced by in-state renewable sources by 2015. The mandate was supposedly aimed at reducing carbon emissions, however; the 2008 law did not require the monitoring of emissions to measure the mandate's actual impact.

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